Citation Nr: 0303064
Decision Date: 02/21/03 Archive Date: 03/05/03
DOCKET NO. 01-00 052A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for residuals of a back
injury.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from December 1972 to
December 1975.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a November 1999 rating decision of the
Regional Office (RO) that denied the veteran's claim for
service connection for residuals of a back injury.
FINDINGS OF FACT
1. The service medical records are negative for complaints
or findings of a back injury.
2. The veteran's current back disability was first
documented many years after service, and there is no
competent medical evidence linking it to service.
CONCLUSION OF LAW
Chronic residuals of a back injury were not incurred in or
aggravated by active service. 38 U.S.C.A. § 1110 (West Supp.
2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Recently enacted legislation has eliminated the well-grounded
claim requirement, has expanded the duty of the Department of
Veterans Affairs (VA) to notify the veteran and the
representative of the information and evidence necessary to
substantiate a claim, and has enhanced VA's duty to assist a
veteran in developing the evidence necessary to substantiate
a claim. See Veterans Claims Assistance Act (VCAA) of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2002)).
VA issued regulations to implement the VCAA in August 2001.
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. § 3.156(a), the second sentence of 38
C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), which
were effective August 29, 2001. VA has stated that the
provisions of this rule merely implement the VCAA and do not
provide any rights other than those provided in the VCAA. 66
Fed. Reg. 45,629. Accordingly, in general where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions likewise are satisfied.
VA has met its duty to notify and assist in the veteran's
case. A rating decision apprised the veteran of the reasons
and bases for the VA decision. A statement of the case, and
supplemental statement of the case, apprised the veteran of
the law applicable in adjudicating the appeal. The
supplemental statement of the case issued in May 2001 and VA
letter issued in August 2002 apprised the veteran of the
pertinent provisions of the VCAA and of that evidence he
needed to submit and the development the VA would undertake.
The correspondence reflects that the veteran's representative
received a copy. There is no indication that this
correspondence was returned as undeliverable. As such, the
Board finds that the VA's duty to notify the veteran of the
information and evidence necessary to substantiate his claim,
as well as the actions expected of him and those the VA would
provide, have been met. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
Regarding VA's duty to assist, the Board notes that the
claims file contains the veteran's service medical records as
well as post-service VA and private treatment records.
Statements from the veteran and his representative are of
record, and the veteran provided testimony before the Board
in December 2001. The veteran has not indicated that there
is any additional evidence that could be obtained.
Accordingly, the Board finds that all information and
evidence have been developed to the extent possible and that
no prejudice will result to the veteran by the Board's
consideration of this matter. See Bernard v. Brown, 4 Vet.
App. 384, 393-94 (1993).
Factual background
The service medical records disclose that the veteran was
injured in October 1974 when he overturned a jeep. It was
noted that he was seen in a field hospital, where X-ray
studies were negative for fracture. He was given crutches to
keep weight off his foot. It was indicated that he injured
the left ankle in the accident. A report of medical history
in October 1975, in conjunction with the separation
examination, discloses that the veteran denied having had
recurrent back pain. A clinical examination of the spine on
the separation examination in October 1975 was normal.
In a statement dated in September 1988, a private physician
related that the veteran had the insidious onset of back pain
occurring over the previous two years. Following an
examination, the impression was that it appeared that the
veteran had some anomalous problems with the lumbar spine.
He had a suggestion of a Grade I spondylolisthesis.
The veteran submitted a claim for service connection in April
1999. He did not list any treatment either during service or
thereafter.
VA outpatient treatment records dated from 1995 to 1999 have
been associated with the claims folder. In March 1995, the
veteran related a history of left low back pain for more than
ten years. The veteran was seen for physical therapy in June
1996 and it was indicated that he had experienced low back
pain on and off for fifteen years.
The veteran was afforded a VA general medical examination in
July 2000. He reported that he hurt his back in service when
he had a tipped over jeep accident in 1974 while he was in
Germany. He related that, at that time, he had back pain and
that he was treated symptomatically. He claimed that he had
been getting chronic low backaches since the original injury.
He noted that he had numbness and diminished sensations on
and off, especially over the left lower extremity for the
previous fifteen years. Following an examination, the
pertinent diagnosis was degenerative disc disease of the
lumbosacral spine, with left S1 radiculopathy.
In a statement dated in April 2002, the veteran's mother
reported that the veteran had always been active, but that
following service, he started to walk a little bit bent. She
added that the veteran told her that while he was in Korea,
he went up and down the very hilly and rough mountains in a
jeep. She stated that the veteran reported that it was a
very rough and bouncy ride. She also indicated that the
veteran's jeep flipped over when he was in Germany.
The veteran's uncle also submitted a statement in June 2002.
He pointed out that he had been a neighbor of the veteran for
many years. He claimed that when the veteran returned from
service, he observed that his posture was not upright and
that it appeared that he was having some difficulty walking.
By letter dated in August 2002, the Board advised the veteran
that it needed to obtain records of his treatment for a back
injury and that he needed to fill out a form so that this
could be accomplished. He was requested to complete and sign
VA Form 21-4142, Authorization and Consent to Release
Information to the VA for records from Dr. Wayne C. Meech.
The veteran was informed that if he chose not to provide the
release, he could obtain the records and send them to the
Board. He was also advised that failure to respond could
severely hamper the VA's efforts to assist him and it might
have an adverse effect on the ultimate decision in his case.
No response was received.
Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110.
During a hearing before the undersigned, and on his claim for
service connection submitted in April 1999, the veteran
stated that he injured his back in service when he overturned
a jeep while in Germany in October 1975. The service medical
records confirm that the veteran was involved in an accident
in October 1974 when he overturned his jeep. It is
significant to point out, however, that the records establish
that he sustained an injury to the left ankle, and there was
no indication at that time of any injury to the back. It
must also be observed that prior to his separation from
service, the veteran specifically denied having any back
problems. Indeed, a clinical evaluation of the spine
revealed no abnormality.
In addition, the Board notes that when he was seen by a
private physician in 1988, the veteran related a two-year
history of back pain. Similarly, VA outpatient treatment
records dated in 1995 and 1996 variously describe a ten or
fifteen year history of back pain. Even with a fifteen-year
history of back pain, this still dates the onset of such pain
to the early 1980's, approximately six years following the
veteran's separation from service.
In sum, there is no clinical evidence demonstrating that the
veteran sustained a back injury in service, or that his
current back disability is related to service. The only
evidence supporting the veteran's claim consists of his
statements regarding the onset of his disability. Since the
veteran is not a medical expert, he is not competent to
express an authoritative opinion diagnosing his medical
condition or any questions regarding medical causation. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In contrast,
the medical evidence is persuasive and suggests that the
veteran's back disorder was not present in service or for
years thereafter, and is not related in any way to service.
The Board concludes that the weight of the evidence is
against the claim for service connection for residuals of a
back injury.
ORDER
Service connection for residuals of a back injury is denied.
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.